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58 FLRA No. 19
DEPARTMENT OF AGRICULTURE
FEDERAL GRAIN INSPECTION SERVICE
GRAIN INSPECTION, PACKERS AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3157
September 12, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Gary C. Raffaele filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exception.
The Arbitrator determined that a disputed overtime assignment was not in accordance with the parties' collective bargaining agreement and awarded the grievants backpay. For the following reasons, we find that the award of backpay is deficient.
II. Background and Arbitrator's Award
The grievance in this case contended that certain overtime assignments for inspection employees were not made in accordance with the parties' collective bargaining agreement. Article 11, Section 1(L) of the agreement provides, in pertinent part, that "[t]op priority employees will be assigned the basic positions at the elevator/worksite which is projected by union and management to work the most hours."
On the weekend in dispute, the top priority employees were assigned to the ADM elevator, rather than the Bunge elevator. However, they were not needed for the full Sunday shift and were "knocked-off" 5 hours early. Award at 5. The lower priority employees assigned to the Bunge elevator worked their entire overtime shift on Sunday. The employees assigned to the ADM elevator filed the grievance and claimed that they were due 5 hours of overtime because the priority designation had been incorrect and, if it had been correct, they would have worked their entire shift at the Bunge elevator.
The Arbitrator sustained the grievance "in part." Id. at 12. He found that "[t]he Agency did not fully carry out [its] responsibilities under Article 11, Section 1(L) in the assignment of the top priority employees" on the disputed weekend. Id. As a remedy, he awarded each of the grievants 5 hours of overtime.
The Arbitrator noted that under Section 1(L), the assignment of priorities is the responsibility of both parties, but that the parties were not in agreement on how the responsibilities are jointly carried out. The Arbitrator explained that part of the problem in this case was due to a change in Union representatives. Two weeks prior to the weekend in dispute, the responsible Union representative was promoted out of the unit and resigned his Union position. According to the Arbitrator, there was little, or no, communication between the promoted representative and his replacement as to the responsibilities of the Union in designating overtime assignments.
In the Arbitrator's view, the "grievance [wa]s the result of neglect on the part of both parties." Id. at 10. He found that agency officials chose to ignore responsibility for designating priorities while waiting for the new Union representative to assume the responsibilities of the former representative. The Arbitrator noted the Agency's claim that the Union representative "should have taken initiative on the weekend in question." Id. However, the Arbitrator found that agency officials "took no action to give him the information[.]" Id. The Arbitrator viewed it "unacceptable" for the Agency to take the position that it is the Union's responsibility for assigning priorities, while, at the same time, "not get[ting the Union] the information needed to make those priorities." Id.
Accordingly, in answer to the question of whether the Agency followed the procedures of Article 11, Section 1(L) in the assignment of overtime, he ruled "yes and no." Id. at 11. The affirmative answer was based on the Arbitrator's "opinion that the greater burden to carry out this assignment rested with the Agency supervisors, since they were in a position to both receive and disseminate the full information needed to make and [sic] appropriate priority designation." Id. The Arbitrator concluded that "the supervisor knew the union official [ v58 p99 ] did not have such information and was not attempting to get it, yet allowed the procedure to fail." Id. On this basis, the Arbitrator ruled that the overtime assignment for the weekend in dispute was not in accordance with the parties' collective bargaining agreement and awarded the grievants "5 hours of overtime." Id. at 12.
For purposes of clarification, the Agency (with the Union's knowledge) asked the Arbitrator whether the grievants were to receive the opportunity to work 5 hours of overtime or whether they were to receive 5 hours of overtime as backpay. The Arbitrator replied that the 5 hours was backpay "[a]ssuming [that] this is within Federal regulations." Arbitrator's e-mail of June 13, 2001. He stated that "[i]f the regulations are otherwise, then it would be five hours of overtime work at the next opportunity." Id.
III. Agency's Exception
The Agency contends that to the extent that the Arbitrator has ordered backpay, the award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency asserts that the award of backpay does not meet the requirements of the Act. The Agency does not except to the Arbitrator's clarified award of an alternative remedy of providing the grievants with the opportunity to work the next available 5 hours of overtime, in the event that an award of backpay is not authorized. [n1]
The Agency first argues that to the extent that the Arbitrator found that it violated Article 11, Section 1(L), the violation does not constitute the required unjustified or unwarranted personnel action because the priority designation of overtime assignments is not nondiscretionary. In addition, the Agency argues that, in any event, the award is deficient because there is no causal connection between the violation and the 5 hours of overtime not worked by the grievants. The Agency claims that the Arbitrator did not find that had the assignment of overtime been designated in accordance with the agreement, the priority designation would have resulted in assigning the grievants to the Bunge elevator. The Agency maintains that "[a]t best, the elevator/worksite that worked the most hours was known after the hours were actually worked." Exception at 2.
IV. Analysis and Conclusions
The Agency contends that to the extent that the Arbitrator has awarded backpay, the award is contrary to law. When a party's exception disputes an award's consistency with law, we review the question of law raised by the award and the exception de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995).
An award of backpay by an arbitrator is authorized under the Back Pay Act only when: (1) the aggrieved employees were affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in a loss of pay, allowances, or differentials by the employees. See, e.g., United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000). In determining whether an award of backpay is deficient, we examine whether there has been an unjustified or unwarranted personnel action and whether there is a causal connection between the unwarranted personnel action and the loss of pay, allowances, or differentials. See id. With respect to the requirement of a causal connection, we typically examine whether the arbitrator has found that but for the unwarranted action, the loss of pay, allowances, or differentials would not have occurred. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998) (an examination of whether a pay loss would have occurred but for the unwarranted action amplifies the causal connection requirement of the Act).
We conclude that the award of backpay is deficient because it is contrary to the Back Pay Act. The Arbitrator did not find and the record does not establish that the Agency's failure to follow the procedures of the parties' collective bargaining agreement resulted in the loss of 5 hours of overtime pay on the disputed weekend. [n2] Clearly, the Arbitrator made no finding that but for the Agency's failure to follow the procedures of Article 11, Section 1(L), the grievants would have been assigned to [ v58 p100 ] the Bunge elevator location and worked an entire overtime shift. In addition, the required causal connection is not implicit from the findings of the Arbitrator or the record before the Authority.
The award and record do not reflect that the grievants' failure to have worked at the Bunge elevator location for an entire overtime shift on the disputed Sunday is attributable to the Agency's failure to follow the procedures of the agreement. To the extent that the Arbitrator found that the Agency failed to follow the procedures of the agreement, his opinion only addresses why he concluded that the Agency did not fully meet its obligations under the procedure. The award does not address what would have happened if the Agency had met its obligations.
Consequently, nothing in the Arbitrator's findings or the record supports a causal connection between any unwarranted action of the Agency and the grievants' failure to work a full overtime shift on the disputed Sunday. See, e.g., Soc. Sec. Admin., Office of Hearings and Appeals, Orlando, Fla., 54 FLRA 609, 614 (1998) (arbitrator's award did not reflect any connection between the failure to follow promotion procedures and the failure of the grievant to be selected for promotion). Therefore, to the extent that the Arbitrator awarded backpay, the award is deficient as contrary to the Back Pay Act and must be modified accordingly. See, e.g., United States Dep't of the Army, Army Missile Command, Multiple Launch Rocket Sys. Project Office, Redstone, Ala., 56 FLRA 388, 391 (2000).
We note that when an arbitrator's finding of a contractual violation remains undisturbed but an award of backpay is found deficient, we normally remand for consideration of an appropriate remedy. See id. Here, however, as noted above, the Arbitrator, after receiving an unopposed request for clarification of his award, specifically provided for an alternative remedy of providing the grievants with the opportunity to work the next available 5 hours of overtime, in the event backpay was unauthorized. Further, as noted above, neither the Agency nor the Union has excepted to this alternative remedy. Consequently, our decision striking the award of backpay makes operative the Arbitrator's alternative remedy of providing the grievants with the opportunity to work the next available 5 hours of overtime. See NTEU, NTEU Chapter 51, 40 FLRA 614, 622 (1991) (arbitrator's alternative order to which no exception was filed was not deficient).
The award is modified by striking the Arbitrator's order of 5 hours of backpay.
Footnote # 1 for 58 FLRA No. 19 - Authority's Decision
The Agency not only does not except to the alternative remedy, the Agency specifically states that it does not oppose providing the grievants with the opportunity to work the next available 5 hours of overtime. See Exception at 2. The Union also has not indicated any opposition to the Arbitrator's alternative remedy.
Footnote # 2 for 58 FLRA No. 19 - Authority's Decision
In view of our decision that the award of backpay is deficient because there is no causal connection between the Agency's failure to follow the procedures of the agreement and the loss of 5 hours of overtime pay, we need not address whether the Agency's failure constituted an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. See United States Dep't of Transp., Fed. Aviation Admin., New York Terminal Radar Control Facility, Westbury, N.Y., 54 FLRA 506, 512 (1998) (because there was no causal connection between the agency's procedural error and the loss of pay, the Authority found the award of backpay deficient without resolving whether the procedural error constituted an unjustified or unwarranted personnel action within the meaning of the Back Pay Act). Moreover, as the Arbitrator's alternative remedy does not involve backpay, the requirement of an unjustified or unwarranted personnel action does not apply to this remedy.